Monday, March 07, 2016

Proposed Legislation in Massachusetts and in Erie County Would Prevent Pharmacies from Selling Some Smoking Cessation Products

New legislation being proposed in the state of Massachusetts and in Erie County (New York) would tell pharmacies that they can no longer sell one of the most popular smoking cessation products that they currently offer: electronic cigarettes.

Both bills purport to ensure that pharmacies do not sell unhealthy tobacco products that are inconsistent with their health mission. However, both bills define tobacco products in such a way that they include electronic cigarettes. Thus, pharmacies in Massachusetts and Erie County could no longer sell e-cigarettes to smokers trying to quit if this legislation is enacted.

The Massachusetts legislation (Senate Bill 2152) bans the sale of "tobacco products" in pharmacies. However, it defines tobacco products as:

"any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to: cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff, or electronic cigarettes, electronic cigars, electronic pipes, or other similar products that rely on vaporization or aerosolization. Tobacco product” includes any component, part, or accessory of a tobacco product. “Tobacco product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product and is being marketed and sold solely for the approved purpose."

While the Erie legislation is yet to be introduced, it will define tobacco products in a similar manner as in Massachusetts and will include electronic cigarettes.

The Rest of the Story

Putting aside for a moment the issue of whether there is a valid justification for the government telling pharmacies that they cannot sell tobacco products because selling those unhealthy products is inconsistent with their mission, what justification is there for the government to tell pharmacies that they cannot sell a product that is designed and intended to help smokers quit?

Certainly, getting smokers to quit or to cut down substantially on their cigarette consumption by switching to a much safer product that contains no tobacco (i.e., electronic cigarettes) is a legitimate health objective that is entirely consistent with the mission of pharmacies.

While the sale of electronic cigarettes to youth could be viewed as detrimental to the public's health, the Massachusetts legislation would ban the sale of all tobacco products and electronic cigarettes to anyone less than 21 years of age. Thus, what the legislation is actually banning is the sale of electronic cigarettes to adult smokers.

Essentially, the legislation is helping to promote continued smoking among adults by making it more difficult for them to purchase electronic cigarettes. This makes absolutely no sense.

At very least, both pieces of legislation should be amended to allow the sale of electronic cigarettes, which are not properly or appropriately defined as tobacco products, but are actually tobacco-free products intended to deter tobacco use.

But there is a more fundamental problem here. If these legislators feel comfortable telling pharmacies they cannot sell tobacco products, then what justification is there for these very same legislators to allow gas stations, convenience stores, grocery stores, and supermarkets to sell cigarettes? The justification that the legislature is using to ban the sale of cigarettes in pharmacies - that it is not consistent with their mission - is also true for these other stores. After all, is there any store whose mission is to kill people? The sale of cigarettes is not consistent with the mission of any type of store, not just pharmacies.

So why are these legislators not courageous enough to simply ban the sale of tobacco products, period?

I think it's quite simple. Banning the sale of tobacco products in all stores in a state or a county would actually have an effect on reducing the consumption of cigarettes and would actually protect the public's health by reducing cigarette sales. But banning the sale of tobacco products just in pharmacies will have no appreciable effect on tobacco sales, since people can simply purchase these products in other stores. The appearance is that these legislators do not want to do anything that will actually put a significant dent in cigarette consumption because their state or county would lose tobacco tax revenues and Master Settlement Agreement funding.

What is most disappointing to me is that these legislators are not willing to stand up for a public health principle that they claim to espouse. They are willing to pretend to stand up for this principle only to the point of passing window dressing legislation that does little, if anything, to alleviate the tobacco epidemic. And to make matters worse, this legislation bans the sale of a product that is helping millions of smokers to stay away from toxic tobacco cigarettes.

About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 32 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.